Wiretapping leak probe dropped

The Justice Department has dropped its long-running criminal investigation of a lawyer who publicly admitted leaking information about President George W. Bush’s top-secret warrantless wiretapping program to The New York Times — disclosures that Bush vehemently denounced as a breach of national security. They also stoked a congressional debate about whether the government had overstepped its authority as it scrambled to respond to the Sept. 11 terror attacks.

The decision not to prosecute former Justice Department lawyer Thomas Tamm means it is unlikely that anyone will be charged for the disclosures that led to the Times’ Pulitzer Prize-winning story in December 2005, revealing that after the Sept. 11 attacks, Bush ordered the interception of certain phone calls and email messages into and out of the U.S. without a warrant — a move many lawyers contend violated the 1978 law governing intelligence-related wiretaps.

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The petering out of the warrantless wiretapping leak investigation amounts to a low-profile and ambiguous conclusion to an episode that dominated the headlines in the second half of the Bush administration. While Washington is immersed in the latest round of WikiLeaks revelations and the investigation into new disclosures of a trove of government secrets, the dropped wiretapping investigation amounts to the final chapter of the most significant leak of the Bush era.

The Justice Department would not discuss the current status of the probe, which began in late 2005 after the Times story was published with a formal leak complaint from the National Security Agency. However, Tamm’s attorney, Paul Kemp, told POLITICO he and his client were informed “seven or eight months ago” that the investigation into Tamm was over.

The information was relayed during a meeting with the prosecutor handling the case, William Welch, Kemp said. The Justice Department recently issued Tamm a letter, confirming that the probe had concluded, the defense attorney said.

Prosecutors also appear to have lost interest in a former National Security Agency official who also publicly acknowledged being a source for the Times on the warrantless wiretapping story, Russell Tice. An attorney for Tice, Joshua Dratel, said it has been several years since prosecutors contacted him about the investigation.

“I have not heard anything from them in a very, very long time,” Dratel said Monday. “I haven’t been concerned about it in a long time. … I never thought [Tice] had anything to worry about.”

Asked about the apparent move to drop the inquiry, Dratel said: “I think it’s the right decision.”

Former federal prosecutor Victoria Toensing said the decision not to prosecute Tamm signals that the investigation is, in essence, dead.

“If the guy who came forward and said, ‘I admit it. I gave the information to The New York Times,’ is not going to be indicted, then no one is,” Toensing said. “It’s perplexing why this case wasn’t pursued. … I expect the Judiciary committees or somebody in Congress will pull someone in from the Justice Department and ask some tough questions about it.”

One factor that may have helped torpedo any prosecution is the numerous public claims that the warrantless wiretapping program was unlawful.

“No more illegal wiretapping of American citizens,” then-Sen. Barack Obama (D-Ill.) declared in August 2007. “No more ignoring the law when it is inconvenient. That is not who we are. And it is not what is necessary to defeat the terrorists.”

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CORRECTION: Corrected by: Alicia Lozano @ 04/26/2011 09:00 PM
CORRECTION: An earlier version of this article referred to Diane Roark as a former Senate Intelligence Committee staffer. She worked for the House Intelligence Committee.